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61 ST Congress, 

^d Session. 



SENATE. 



j Document 
t No. 328. 



RELINQUISHMENT OF STATE'S EIGHT TO INDEMNITY 

SCHOOL LANDS. 



Mr. Heyburn presented the following- 

OPINION OF THE SUPREMS COURT OF THE STATE OF ;DAH0 
RELATIVE TO PROHIBITING AND RESTRAINING THE 'STATE 
BOARD OF LAND COMMISSIONERS FROM RELINQUISHING THE 
STATE'S RIGHT AND TITLE TO CERTAIN INDEMNITY SCHOOL 
LANDS. 



January 27, 1910. — Ordered to be printed. 



[In the supreme court of the State of Idaho. November term, 1909. Tiled January 22, 1910. I. W. 
Hart, clerk. William Balderston, plaintiff, v. James H. Brady et al., defendants.] 

STATE LANDS — POWER OF STATE LAND BOARD — DISCRETION OF BOARD- 
TITLE TO SCHOOL LANDS— POWER OF BOARD TO RELINQUISH SCHOOL 
LANDS. 

1. The state board of land commissioners is vested under the consti- 
tution (sees. 7 and 8, art. 9) with the "direction, control, and disposi- 
tion of the public lauds of the State under such regulations as may be 
prescribed b}^ law." 

2. Under the provisions of sections 7 and 8 of article 9 of the con- 
stitution the direction, control, and disposition of the public lands of 
the State must be in pursuance and under the direction of the consti- 
tution and statutes of the State and not otherwise. 

3. Where the proposed or contemplated action of the state land 
board involves the exercise of judgment and discretion vested in the 
board, the courts will not attempt to control or direct such discretion, 
or in any manner interfere with their action, so long as it is exercised 
within the scope of their authority. Where, on the other hand, the 
proposed or contemplated action is without the authorit}^ of law or haS 
no legal sanction, the courts may interfere and interrupt their action 
and declare the law on the subject and point out to them the legal scope 
within which their judgment and discretion is to be exercised. 

4. House joint resolution No. 10, adopted March 10, 1909 (1909, SesSo 
Laws, p. 451). has no force or eflect as a law of the State, and can fur- 
nish no authority or justification for the state board of land commis- 
sioners either acting or refusing to act on any matter coming before 
them. They can not rest or justify their action in any matter upon the 
authority or direction of such resolution or any action taken by the 
commission created b}'^ that resolution. 



IO^i^/17 



2 state's eight to indemnity school, lands. '-^ 

5. The State's title to sections 16 and 36 in eveiy township in the 
State discussed and considered. 

6. The state board of land commissioners has no power or authority 
conferred upon it, either by the constitution or statute of this State, 
to relinquish the State's right or title to sections 16 and 36, granted bj^ 
the General Government for common- school purposes, and an}^ action 
taken by the board or under its direction or authority attempting to 
relinquish or waive the State's right to such lands is void. 

(Syllabus by the court:) Original action by the plaintiff to procure 
a writ of prohibition, restraining and prohibiting the state board of 
land commissioners from relinquishing the State's right and title to 
certain indemnity school lands. The defendant board demurred to the 
petition. Demurrer overruled. 

Wyman & Wyman and B. S. Crow, for plaintiff". 

D. C. McDougall, attorney-general; J. H. Peterson, assistant attor- 
ney-general; Edwin Snow and Edwin McBee, for the board. Gray & 
Knight, amici curiae. 

AlLSHTE, J.: 

This is an original action commenced in this court by the plaintiff, 
as a citizen and taxpa3'er, prajdng for a wvit of prohibition against 
the threatened action of the state board of land commissioners, pro- 
hibiting and restraining them from relinquishing the right and title of 
the State of Idaho to certain lands situated in Shoshone County, and 
heretofore selected by the board under the land grants made by the 
General Government to the State of Idaho! The board has filed a 
demurrer to the complaint, raising the sufficiency of the allegations of 
the complaint to entitle the plaintiff to the relief demanded. The 
facts pleaded and on the sufficiency of which we must pass are sub- 
stantially as follows: 

On July 6, 1901, the governor of the State applied to the Commis- 
sioner of the General Land Office for the survey of a portion of the 
public domain in Shoshone County and described as townships 44 
north of ranges 2 and 3 east, Boise meridian. This application was 
made under the provisions of the act of Congress of August 18, 1894 
(28 Stat. L., pp. 372 and 394). Notice of the application was there- 
upon published in the Idaho State Tribune, of Wallace, as required by 
the act of Congress. Official survey was thereafter made by the Gov- 
ernment, and its approved plats were filed in the United States land 
office at Coeur d'Alene on July 5, 1905. It seems that the Commis- 
sioner of the Land Office neglected to give notice to the local land 
office at Coeur d'Alene city of the application made by the State. 
Between the date of the application made by the governor for the 
survey and the filing of the approved plats in the land office, a number 
of settlers went upon the lands and appear to have established their 
residence thereon. 

Under the act of Congress the State was given a priorit}^ of sixty 
da3^s from the filing of the approved plats in the land office in which 
to select and make filing on any of the lands included in the surve\\ 
Accordingly, the state board of land commissioners on July 9, 1905, 
offered filing lists at the Coeur d'Alene land office for a large portion 
of the survej^, and the applications were refused on the ground that 
that office had no notice of the preference right of the State and that 
filings by settlers had previous!}^ been accepted. The filings of the 
State were accordingly rejected by the officers of the local land office. 



fVlAR 4 1910 



^ 



% 

state's eight to indemnity school lands. 3 

^^The State of Idaho appealed from the action of the local office to the 

^.Commissioner of the General Land Office. The commissioner held 

that the State had a prior and preference right over all settlers who 

entered upon the lands subsequent to July 6, 1901, the date on which 

the governor applied for the survey of these townships. 

The settlers thereupon appealed to the Secretary of the Interior, 
and on June 27, 1907, Secretary Garfield rendered a decision affirming 
the action of the Commissioner of the General Land Office and sus- 
taining the prior right of the State to file upon the lands included in 
its lists. (See Thorpe et al. v. State of Idaho, 35 L. Dec, 640.) It 
appears that soon after the decision of the Secretary of the Interior 
the state board of land commissioners requested the Secretary to 
withhold final order and judgment affirming the decision of the 
Commissioner of the General Land Office and directions to the local 
land office to receive the filings, and that accordingly the Secretary 
has withheld the final order and instructions from the department in 
the premises. This, it appears, however, has been done solely on the 
request of the defendant board. 

In the meanwhile, according to statements made in the briefs by 
counsel for the board, the matter crept into the political considera- 
tions in this State, and it seems that during the campaign preceding 
the general election of 1908 the two leading political parties made 
some promises or declarations that, if successful in the election, they 
would relinquish some of these lands to the settlers who had been 
unsuccessful in their contests before the department. In obedience, 
say the briefs, to those promises and representations the legislature, 
by house joint resolution No. 10, which passed the senate March 2, 
1909 (1909, Session Laws, p. 451) ado})ted a resolution appointing a com- 
•mission consisting of two members of the legislature and the state 
land commissioner, appointed by the governor, to investigate the 
claims of these settlers and to take testimony and report the same to 
the state board of land commissioners together with their recom- 
mendations in the premises. It is also provided that the state board 
of land commissioners should act upon the unanimous recommenda- 
tions of the commission. Subdivision 11, of section 8, of the resolu-- 
tion provides as follows: 

Provided, That no recommendation shall be made unless with the approval of all 
members of the commission: And it is further provided, That the detailed report of 
the commission, as required in Section III, be filed with the state board of land com- 
missioners within thirty da3's after the completion of the investigation; and that the 
state board of land commissioners shall, within thirty days after the tiling in their 
offices of the report and recommendations of the said commission, relinquish or cause 
to be relinquished all the fights of the State of Idaho to the lands claimed by said 
claimants or such portion thereof as may be recommended to the favorable action of 
the state board of land commissioners. 

The commission, acting under authority of this resolution, proceeded 
to the county where the lands are situated and took testimony, and 
thereafter made their findings and report and filed the same with the 
state board of land commissioners, recommending that certain tracts 
of land claimed by various settlers be relinquished and that the State's 
filing thereon be canceled. 

The complaint alleges that the board is about to and threatens to act 
in conformity with the recommendations of the commission and the 
provisions of the resolution and relinquish all the right, title, interest, 
and claim of the State in and to the lands described in the report and 



4 STATE S EIGHT TO INDEMNITY SCHOOL LANDS. 

recommendations. It is to prevent this threatened action on the part 
of the board that the present suit is tiled. 

In support of the demurrer the defendant contends that the board is 
vested by the constitution (sec. 7, art. 9) with unqualified power and 
authority over the lands granted by the United States to the State, and 
is vested with unlimited discretion in the matter of selection of such 
lands and may likewise, in its discretion, relinquish any such lands. 
Sections 7 and 8 of article 9 of the constitution provide as follows: 

Sec. 7. The governor, superintendent of public instruction, secretary of state, and 
attorney-general shall constitute the state board of land comnriissioners, who shall 
have the direction, control, and disposition of the public lands of the State, under 
such regulations as may be prescribed by law. 

Sec. 8. It shall be the duty of the state board of land commissioners to provide 
for the location, protection, sale, or rental of all the lands heretol'ore, or which may 
hereafter be, granted to the State by the General Government, under such regula- 
tions as may be prescribed by law, and in such manner as will secure the maximum 
possible amount therefor: Provided, That no school lands shall be sold for less than 
ten dollars per acre. No law shall ever be passed by the legislature granting any 
privileges to persons who may have settled upon any such public lands, subsequent 
to the survey thereof by the General Government, by which the amo nt to be 
derived by the sale, or other disposition of such lands, shall be diminished, directly 
or indirectly. The legislature shall, at the earliest practicable period, provide by 
law that the general grants of land made by Congress to the State shall be judiciously 
located and carefully preserved and held in trust, subject to disposal at public auc- 
tion for the use and benefit of the respective objects for which said grants of land 
were made, and the legislature shall provide for the sale of said lands from time to 
time and for the sale of timber on all stale lands and for the faithful application of 
the proceeds thereof in accordance with the terms of said grants: Provided, That 
not to exceed twenty-five sections of school lands shall be sold in any one year, and 
to be sold in subdivisions of not to exceed one hundred and sixty acres to any one 
individual, company, or corporation. 

Now, there can be no question or doubt but that the "direction, con- 
trol, and disposition of the public lands of the State" is vested in the 
state board of land commissioners. It is equally clear and certain 
that this power must be exercised "under such reg'ulations as may be 
prescribed by law." Both of the foregoing- sections of the constitu- 
tion contain the same provisions as to this limitation of power. The 
legislature is prohibited, however, from passing any law that would 
authorize a sale of school lands for less than $10 per acre, or any sale 
or disposition other than "at public auction." In many of the mat- 
ters coming before the board in reference to state lands they must 
exercise their judgment and discretion, and it is a well-settled prin- 
ciple of law that in such cases the courts will not attempt to control 
or supervise the discretion vested in the officers of a coordinate branch 
of the government. We held to the same effect in Pierson v. State 
Board of Land Commissioners (14 Idaho, 163). The findings of the 
board on the facts of anv given matter of inquiry is final and conclu- 
sive (White V. Whitcomb,\3 Idaho, 490; 29 Sup. Ct. Rep., 599); but 
an error made in applying the law to the facts, or an erroneous con- 
struction of the law by the land department may be reviewed and cor- 
rected by the courts. In Pierson v. Board, supra, this court said : 

If they (the board) act in a matter without jurisdiction, there is a remedy; if they 
siriisapply the law to the fact found, or in case of fraud, there is a remedy. * * * 

It is obvious that if the contemplated action "of the board of land 
commissioners involves the exercise of a judgment or discretion vested 
in them by law, then this court can not and will not attempt to control 
that discretion or in any manner interfere with or direct the action of 



% 

state's right to IlSTDEMISriTY SCHOOL LANDS. 5 

the board. If, on the other hand, the action proposed is without author- 
it}' of law or has ho legal sanction or authority, or is an attempt to act, 
not upon the discretion and judgment of the board but upon a substi- 
tuted judgment or discretion or upon the judgment, discretion, and 
direction of some other board or body, then and in such cases this 
court may interrupt them and declare the law on the subject, and point 
out to them the legal scope within which their judgment and discretion 
must be exercised. 

It has been urged in this case, not by counsel for the state, but by 
associate counsel who are really representing the claimants to this land, 
that under the authority of Stein v. Morrison (9 Idaho, 426), the writ 
of prohibition will not lie against the governor or a board of which 
the governor is a member. The case cited falls far short of going to 
the length claimed for it by counsel. In that case the court, after 
stating- the respective positions of counsel and the trend of the argu- 
ment made on this subject, stated its legal conclusion as follows: 

It seeuis to us that to keep within the principle of our Constitution (sec. 1, art. 2) 
and form of government, wliich recognizes the independence and specific character 
of the "three distinct departments" of government, that the judicial de[iartment 
could not attempt to prohibit either of the other departments from acting within the 
recognized scope of their respective branches of tlie Government, but that on the 
other hand the legal effect of such action after it has been taken may be inquired 
into by the court. 

It will be observed that the test enunciated by the foregoing state- 
ment is that the action proposed to be taken must be " within the 
recognized scope of their respective branches of the Government." It 
is doubtful if anyone would seriously contend that the process of the 
courts will not run against an individual -or individuals, holding- an 
executive office or offices or comprising an executive board, simply 
because they occupied such official position and were assuming to act 
M as officials although their action was bej^ond the scope of their au- 
li thorit}" and wholl}' unauthorized b}" law. We do not hold such a posi- 
i tion tenable and have never so held. 

: It is also urged that the writ of prohibition will not run against the 
: chief executive, and that since the governor is a member of the state 
board of land commissioners the writ will not lie against that board. 
This position is without merit. As stated in Stein v. Morrison, supra, 
it is held b}' man}' authorities that the writ of prohibition will not lie 
against the governor of the State to restrain him from performing an 
executive act. This case does not fall within the line of those aiithor- 
j ities nor within the reason on which they rest. The state board of 
land commissioners is a constitutional body. It is composed of four 
> members, each of whom has a vote on all matters coming before the 
. board. This board is as distinct and separate from all other offices 
I as is the office of governor or judge of this court. It is created by 
the same instrument which created the office of governor and the 
judicial department of the St-ate. The individuals who compose the 
board and discharge its duties happen to be state officers, and it so 
happens that the governor of the State, by reason of being governor, 
is chairman of the board. When acting and voting- at a meeting of 
the state board of land commissioners and discharging the particular 
and special duties devolving upon the boat-d, he is not acting as the 
chief executive, but, on the contrary', is acting as one of four mem- 
bers of a board in the discharge of certain ministerial and quasi judicial 
duties imposed on such board by the constitution and statutes. The 



6 STATE S EIGHT TO INDEMNITY SCHOOL LANDS. 

writ, if issued, would run ag-ainst the board and not against the 
governor. 

Passing now to a consideration of the action of the legislature, we 
find that the joint resolution of March 2, 1909, under which this com- 
mission was appointed and the report has been made, is not a law of 
the State. It is not enacted in the manner provided for the enact- 
ment of a law (sec. 15, art, 3) and it is not contended that it is a law. 
On the other hand, it directs that — 

The state board of land commissioners shall, within thirty daj's after the tiling in 
their ottices of the report and recommendations of the said comniission, relinquish or 
cause to be relinquished all the rights of the State of Idaho to the lands claimed by 
said claimants, or such portion thereof as may be recommended to the favorable 
action of the state board of land commissioners. 

This is not advisory or recommendatory, but is made mandatory. 
This resolution furnishes no authorit}^ of law for the action or direc- 
tion of the state board, and the board can not act under it or rest any 
action or judgment or decision made by it upon the resolution. To 
do so would not be acting on tho, judgment mid discretion of the board, 
but upon a substituted judgment, namely, that of the commission ap- 
pointed by the resolution. If this were a legislative enactment in the 
form of a law, it would still be a serious question if the legislative de- 
partment of the State could either authorize or direct the land board 
to part with the State's title and right to school or other lands for less 
than the constitutional minimum price or without a sale "at public 
auction." 

It is contended that the board might discover that some of the land 
included in the lists filed is worthless and that they might determine 
it wise to omit such land from the further lists and take other land 
instead thereof. That contention may be conceded so far as this case 
is concerned, and still the admission will not answer the difficulty con- 
fronting us in this case. It is alleged by the complaint that the 
defendant board are threatening and proposing to act upon the report 
of the commission and in conformity with the resolution passed by 
the legislature and the investigation and report thereon, and are 
about to relinquish and surrender up the right and title of the State 
to this land. That allegation necessarily admitted by the demur takes 
the question of the discretion and judgment of the board out of the 
case, and rests the action of the board entirely and solely upon this 
legislative resolution and the investigation and report had and made 
thereunder. 

The constitution of this State was framed by the constitutional con- 
vention eleven months prior to the admission of the State into the 
Union, and it was ratified by the people some eight months before the 
admission. Notwithstanding this fact, the people at that early date 
incorporated into the fundamental law of the State sections 7 and 8 of 
article 9, heretofore quoted, and thereby forbade the legislature author- 
izing any sale of land for less than $10 per acre or ever "granting any 
privileges to persons who may have settled upon any such public lands 
subsequent to the surve}' thereof by the General Government, by 
which the amount to be derived by the sale, or other disposition of 
such lands, be diminished, directly or indirectly." It was provided 
that the legislature should enact laws whereby the general grants of 
lands made by Congress to the State should be "judiciously located 
and carefully preserved and held in trust " for the several purposes 



STATE S RIGHT TO INDEMNITY SCHOOL \iANDS. 7 

and objects for which the}^ were granted. The admission bill followed 
the provisions of the constitution, and by sections 8 and 11 thereof it 
is provided that none of the lands granted by Congress to the State 
should ever be sold for less than $10 per acre. It needs only to be 
called to mind to be at once apparent that the legislature can not 
authorize the land board or anyone else to do any act with reference to 
state lands that is forbidden by the constitution. Any gift of school 
or other state lands or relinquishment of the State's title is in violation 
of the fundamental laws of the State and would be void. 

Another thing that should not be overlooked in this case is that the 
board must act ''under such regulations as may be prescribed by 
law." The right of the State to this land has been adjudicated and 
determined by the Interior Department of the Government after a 
contest before that department covering a period of about nine years. 
The State has been pursuing its legal rights, and the issue has been 
determined by the duly constituted tribunal in favor of the State. 
No privity of interest existed between the State and these settlers. 
The State was not acting in its sovereign or governmental capacity, 
but purely in its proprietary and business capacit}^, in acquiring title 
to property. In such capacity it could owe no dut}^ to the citizen or 
settler, except to keep within its legal rights and refrain from tres- 
passing upon or interrupting any of the like rights of the settler. 
The Secretary of the Interior, the final arbiter in such matters, has 
found that the State was well within its rights and that the settlers had 
no rights in the premises. Now it is proposed to turn the land board, 
or the commission appointed under this resolution, into a kind of 
court of equity, and after a nine years' lawsuit and the expenditure 
of thousands of dollars to attorne3^s and agents for arguing and urging 
the State's claim at Washington, to reverse the judgment of the Inte- 
rior Department and conclude that the State has for nine years been 
waging an unconscionable demand for a part of the public domain 
that rightf ulh^ belongs to settlers. The land board is not a court of 
equity; it is an executive board charged with duties that must be 
executed in conformity vnth law. 

Some such argument as is now made in support of the proposed 
action of the state land board was evidentl}^ made by the attorne3''s for 
the settlers before the Secretary of the Interior. The counsel for the 
State made reference to that fact in their brief, and said: 

There is all through the appellant's (the settlers) brief the afsumption of some 
wrong done the settlers by the State. It is asserted that the grants to the State were 
"in derogation of the common rights of the settlers," "must be strictly construed," 
and that its selections in this case were in some way irregular or unfair. The officers 
who are representing the State in this matter feel, on the other hand, that in seeking 
to satisfy the grants for common-school purposes they are in the highest sense 
endeavoring to acquire this land as a heritage of the whole people. These verj^ set- 
tlers who are appellants here will share in the benefits of the State's success. (35 
L. Dec, 6 to.) 

It was only after the subject had entered the domain of politics (as 
stated by the briefs) and political conventions had made promises and 
declarations in consideration for votes, that any different view appears 
to have been taken of this matter than that expressed in the State's 
brief before the Interior Department. The onl}" thing in the wa}^ of 
carrying out this promise is that it would be a violation of the law. 
There is no statutory law to prevent political parties making all the 
promises they see tit to make, but whenever they undertake to carry 



8 STATERS RIGHT TO INDEMNITY SCHOOL LANDS. 

out those promises b}^ giving- awa}'' the school lands, the heritage of 
the children of the State, the law steps in and forbids. 

It has been urged on the oral argument in this case that at least a 
pai't of this land was selected as indemnit}^ or lieu land instead of sec- 
tions 16 and 36 in the Coeur d'Alene Indian Reservation. That ques- 
tion does not directly arise on the consideration of this demur, but 
since it is incidentally involved in the consideration of another phase 
of the case and will arise in the hnal determination of the case, we will 
give it consideration here. As has been heretofore observed in this 
opinion, the people of the State had adopted the constitution prior to 
the passage of the admission act. The act of Jul}^ 3, 1890, admitting 
Idaho into the Union, specificalh^ ''' accepted, ratified, and contirmed" 
the state constitution, and the State came into the Union immediately 
upon the passage and approval of the admission bill. Nothing 
remained for the State to do to bring itself within the provisions of 
the act of admission. It was then a State. 

Sections 4 and 5 of the admission bill provide as follows: 

Sec. 4. That sections numbered sixteen and thirty-six in every township of said 
State, and where such sections or any parts thereof have been sold or otherwise 
disposed of by or under the authority of any act of Congress other lands equiva- 
lent thereto, in legal subdivisions of not less than one quarter section, and as con- 
tiguous as may be to the section in lieu of which the same is taken, are here >>' 
granted to said State for the support of common schools, such indemnity lands to 
be selected within said State in such manner as the legislature may provide, with 
the approval of the Se retary of the Interior. 

Sec. 5. That all lands herein granted for educat'onal purposes shall be disposed 
of only at public sale, the proceeds to constitute a permanent school fund, the inter- 
est of which only shall be expended in the support of said schools. But said lands 
may, under such regulations as the legislature shall prescribe, be leased for periods 
of not more than five years, and such lands shall not be subject to preemption, 
homestead entry, or any other entry under the land laws of the United States, 
whether surveyed or unsurveyed, but shall be reserved for school purposes only. 

It will be observed that the language of this grant is ifi prsesenti. 
The grant would therefore seem to be a present grant. The act says 
that sections " 16 and 36 in every township of said State * * * are 
hereby granted to said State for the support of common schools," It 
also provides for the selection by the State of "indemnity lands" to 
reimburse the State "where such sections or any parts thereof have 
been sold or otherwise disposed of by or under the authority of any 
act of Congress." This evidently had reference to the time of the 
passage of the act and meant that lieu or "indemnity lands" might be 
selected for such lands as had been sold or disposed of at the time of the 
admission of the State. This is accentuated b}' the provisions of the 
latter part of section 5, saying that no such lands, "whether surveyed 
or unsurveyed, "shall be "subject to preemption, homestead entry, or 
any other entry under the land laws of the United States." This act, 
it will be observed, is different from most of the previous land laws as 
well as land grants, in that it specified and included "unsurveyed" 
lands, and thereby withdrew all the "unsurveyed" sections 16 and 36 
from settlement or "entry under the land laws." 

Section 13 of the admission bill specifically provided against the con- 
tingency^ which arose in the Nevada admission bill (13 Stat. L., 30) 
as construed in Heydenfelt v. Daney G. & S. M. Co. (93 U. S., 634). 
That section provides that all mineral lands shall be exempt from the 
grants made by the admission bill and authorizes the State to make 
selections of lieu land for sections 16 and 36 wherever such sections 



state's right to indemnity school lands. 9 

might be lost to the State by reason of being mineral lands. The 
Nevada admission bill contained no such exemption or reservation. 
The chief reason, however, given b}^ the court for the decision in the 
Nevada case does not exist or apply here for the reason that many of 
the sections numbered 16 and 36 in Idaho had been "sold or otherwise 
disposed of" prior to the admission of the State. It may be further 
noted that section 14 of the admission bill negatives the idea of the 
necessity for a selection of sections 16 and 36, and of the Secretarv of 
the Interior having any control or direction whatever over such sec- 
tions. His authority and direction is confined by that section to 
"lands granted in quantity or as indemnity" lands. 

It seems to be intimated that the admission bill was in some way 
amended and moditied b.y act of August 18, 1891, and other amend- 
ments to the land laws (28 Stat., 3T2, 394), but we know of no power 
or authority whereby the Congress can divest the State of its title to 
lands that have been previously granted and to which title has vested. 

It is not improper to note another significant fact in this connection. 
On February 22, 1881), which was about a year and a half prior to the 
admission of Idaho, Congress passed an act (25 Stat. L., 679) author- 
izing the people of North Dakota, South Dakota, Montana, and Wash- 
ington to form constitutions and state governments and providing that 
they might thereafter be admitted as Stjites. That act, by section 10 
thereof, provided that the new States should, upon their admission 
into the Union, receive sections 16 and 36 in every township for com- 
mon-school purposes. That same section, however, contained a pro- 
viso that is nowhere to be found in the Idaho admission bill. That 
proviso specifically excepts and reserves from the operation of the act 
sections 16 and 36 "in permanent reservations for national purposes" 
and "any lands embraced in Indian, military, or any reservations of 
any character." It is significant that the Idaho admission bill, passed 
subsequent to the passage of the foregoing act, contained no such 
exception or reservation. There is nothing in the entire admission 
bill which negatives the idea of a present grant. The grantee was in 
existence at the time of the passage of the act and the lands were in 
the State, some surveyed and others unsurveyed. The fact, however, 
that the land was not surveyed could make no' difierence where the 
numbers of the sections were specifically given. 

The title to unsurveyed lands may be as readily conveyed as that to 
surveyed lands. It is a maxim of law that that is certain which is 
capable of being made certain. {Id certum est., quad eeriwii reddi 
potest.) All that remains to be done in order to identify these lands 
on the ground was to have the survey extended over them. The 
description in the grant was definite and certain. So far as we are 
aware it has been the uniform holding of the Supreme Court of the 
United States that such grants are grants in prmsentl^ and immedi- 
ately vest title in the grantee. The principal if not the only excep- 
tions to this rule are Heydenfelt v. Daney G. & S. M. Co., supra; 
Hall V. Russell (101 U. S., 503); and Rice''??. Minn. & N. W. R. Co. 
{^'o U. S., 358; 17 L. Ed., 147). The Heydenfelt case, so far as we 
can find, has never been referred to by the Supreme Court but once 
(N. Y. Indians v. U. S., 170 U. S., 18) and it was there mentioned as 
one of the rare exceptions to the general rule in construing land 
grants. The cases to ihe contrary are too numerous to attempt to col- 
S. Doc. 328, 61-2 2 



10 state's eight to indemnity school, lands. 

late them all. (See Schulenberg v. Harriman, 21 Wall., 44: Leaven- 
worth, L. & G. R. Co. V. U. S., 92 U. S., 733; Mo., K. & T. k R. Co. 
V. Kansas P. R. R. Co., 97 U. S.,491; Den. & R. G. Co. v. Ailing, 99 
U. S., 463; St. P. & R. R. Co. v. N. P. R., 139 U. S., 1; Deseret Salt 
Co. V. Tarpy, 142 U. S., 241; N. Y. Indians v. U. S., 170 U. S., 1.) 

A holding that the State, hampered as it always is in such matters, 
was intended to run a race with settlers, land-scrip brokers, railroad 
companies, and timber and stone land grabbers to secure the remnant 
and refuse of the public domain as lieu and indemnity lands for all its 
best and most valuable school-land sections, 16 and 36, woulcj render 
sections 4 and 5 of the admission bill only a delusion and an idle dec- 
laration. At the time of the admission of the State into the Union 
less than one-lif th of the area of the State had been surveyed. There 
remained about 44,000,000 acres to survey'. If title vested in the State 
to the school sections only that had been surveyed, the State was get- 
ting merely the barest contingency for the unsurveyed sections, not- 
withstanding the declaration in the act that "whether surve^^ed or 
unsurveyed," such lands should not be subject to any kind of entry. 

This discussion, however, is collateral and incidental only to the 
main point with which we are here interested. Whether the Govern- 
ment, through any of its agencies, has the power to reclaim the school 
sections granted by the admission bill is immaterial so far as the Gov- 
ernment is concerned, because Congress, by the act of August 18, 1894 
(28 Stat. L., 372), and other acts dealing with the public domain, has 
amply authorized the Interior Department to grant indemnity and lieu 
lands to the States for any and all lands lost or relinquished b}^ the 
State. (Op. Atty. Gen., Sept. 1.5, 1909; Decision Secretary Interior 
in Heirs of Irwin v. Ewing and State of Idaho, filed subsequent to 
Sept. 15, 1909, and not yet officially reported.) The real question then 
recurs: Has the State authorized the relinquishment of sections 16 and 
36, and has the state land board the authority to relinquish the State's 
right to such lands? But one answer can be given to this query. 

The authority for such an act can not be found in either the Consti- 
tution or statute. It is, therefore, perfectly safe to say that no such 
power exists. We have hereinbefore said that the board must act 
under the law. It must find authority in the Constitution and statute 
for its acts. No such authority as claimed exists, and it is clear that 
the state land board has no power to relinquish or surrender the right 
or title of the State of Idaho to any of its school lands. If the State's 
title to any of these lands comprising sections 16 and 36 is questioned 
or denied by the department, then the duty of the State to secure an 
adjudication of the matter by the federal Supreme Court is plain and 
unmistakable. 

It follows, therefore, that whatever may be said with reference to 
the State's vested rights in sections 16 and 36, it is plain that where 
such sections are found to be mineral lands the State's title fails by 
reason of such fact, and the land board are authorized, and indeed it is 
their duty, to make indemnity selections from other lands to reim- 
burse the State for the loss. If the state agent in making the filing 
should err in describing the lands lost, sold, or disposed of, for which 
the lieu land selection is being made, we do not apprehend such an 
error would defeat the State's right to make the selection and acquire 
the title to such land and have them proper]}^ charged against such 
lands as it had actually lost by reason of the mineral character of 



state's eight to indemnity school lands, 11 

school sections or by reason of loss to the State of any of its public 
grants from any other legal cause. 

The complaint states a cause of action and the demur will be over- 
ruled. It is well enough to suggest at this time that the action of the 
commission appointed by the joint resolution of the legislature has no 
place in the consideration and decision of the land board and can fur- 
nish no protection or justitication for any action by the board, and no 
evidence on that subject would be admissible or considered in this case. 
Neither will evidence as to the condition of these lands or the bona fides of 
the settlers be considered. Their claim has been one against the United 
States, and they must wage that claim against the General Govern- 
ment and not against the State. The State has acquired whatever 
right, title, or claim it now has to the lands freed of any and all 
claims of the settlers. 

Sullivan, C. J., and Stewart, J., concur. 



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